United States District Court, M.D. Tennessee, Nashville Division
TODD J. CAMPBELL, District Judge.
Willie Andrew Cole, an inmate at the Turney Center Industrial Complex in Only, Tennessee, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the legality of his confinement under a 2007 judgment of the Criminal Court of Davidson County, Tennessee, convicting him of first degree murder and tampering with evidence. (Docket No. 1).
By order and accompanying memorandum entered on January 13, 2015, the court denied relief on Cole's petition for a writ of habeas corpus after concluding that forty-four of his claims alleging ineffective assistance of counsel were procedurally defaulted due to his failure to fairly present them to the Tennessee appellate courts following the denial of post-conviction relief by the state trial court. (Docket Nos. 36 & 37). As to Cole's six properly exhausted ineffective assistance of counsel claims, the court upheld the decision of the state appellate court, finding that the state court's determination did not result in a decision that was contrary to or an unreasonable application of law. (Id.)
The petitioner now has filed a Motion to Alter or Amend Judgment pursuant to Rule 59, Fed.R.Civ.P. (Docket No. 41). The court ordered a response to the petitioner's motion (Docket No. 42), and the respondent filed a response in opposition to the petitioner's motion on March 30, 2015 (Docket No. 45). The petitioner's motion to alter and amend is now before the court.
II. Standard of Review
The district court may grant a motion to alter or amend judgment under Rule 59, Fed. R. Civ. P., only if the petitioner shows that there is (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) to prevent manifest injustice. Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005). The movant may not use Rule 59 to re-argue the case or to present evidence that should have been before the court at the time judgment entered. See Roger Miller Music, Inc., v. Sony/ATV Publishing, LLC, 477 F.3d 383, 395 (6th Cir. 2007)(collecting cases). The courts within this Circuit adhere to the principle that a motion to alter or amend is an extraordinary remedy that, in deference to the interests of finality and conservation of judicial resources, courts should only sparingly grant. Stojetz v. Ishee, 2015 WL 196029, at *1 (S.D. Ohio Jan. 13, 2015)(citing American Textile Mfrs. Institute, Inc. v. The Limited, Inc., 179 F.R.D. 541, 547 (S.D. Ohio 1997)).
In his Rule 59 motion to alter or amend the court's dismissal of his habeas corpus petition, Cole does not assert that there is newly discovered evidence or an intervening change in controlling law. (Docket No. 41). Instead, Cole argues that the court's finding of procedural default as to forty-four of his ineffective assistance of counsel claims involved a clear error of law. Next, Cole argues that the court's rejection of his ineffective assistance of counsel claim premised on the failure of trial counsel to retain an expert to conduct DNA analysis on evidence from the crime scene also involved a clear error of law. Finally, Cole argues that the court's failure to review his procedurally defaulted ineffective assistance of counsel claims will result in manifest injustice as Cole is innocent of the crimes for which he has been convicted and sentenced. (Id.)
In response, the respondent contends that the petitioner's motion to alter or amend judgment should be denied because a state prisoner does not fairly present a claim to the Tennessee appellate courts by presenting it for the first time in an application for discretionary review to the state's highest court, the court's finding with regard to Cole's properly exhausted ineffective assistance claim was proper, and Cole has not met the burden of asserting a manifest injustice claim.
A. Procedurally Defaulted Claims
In his § 2254 petition, Cole alleged fifty specific bases on which trial or appellate counsel's performance fell below constitutional standards. (Docket No. 26). As the court recounted in its prior memorandum, Cole raised these same fifty claims in his state post-conviction petition, and the claims were all rejected by the trial court. (Docket No. 36 at pp. 16-17).
Under Tennessee law, a criminal defendant has an appeal as of right to the Tennessee Court of Criminal Appeals from a final judgment in a post-conviction proceeding under Tenn. R. App. P. 3(b). On appeal as of right from the denial of post-conviction relief, Cole raised only six of his fifty claims. The Tennessee Court of Criminal Appeals addressed those six claims on the merits. (Docket No. 36 at p. 17).
Further review by the Tennessee Supreme Court from the final decision of the Tennessee Court of Criminal Appeals lies within the decision of the Supreme Court, based upon criteria outlined in Tenn. R. App. P. 11(a). Issues not raised in the trial court or in the intermediate appellate court are considered waived and will not be considered by the Tennessee Supreme Court. Brown v. Roland, 357 S.W.3d 614, 620 n.6 (Tenn. 2012); Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012)(holding that "issues are properly raised on appeal to this Court when they have been raised and preserved at trial and, when appropriate, in the ...